Rosario-Diaz v. Diaz-Martinez, 1st Cir. (1997)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

_________________________

No. 96-2108

MARIA TERESA DIAZ, ET AL.,

Plaintiffs, Appellees,

v.

MIGUEL DIAZ MARTINEZ, ET AL.,

Defendants, Appellees,

___________________


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TOMAS VAZQUEZ RIVERA,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge] ___________________

_________________________

Before

Selya, Circuit Judge, _____________

Bownes, Senior Circuit Judge, ____________________

and Stahl, Circuit Judge. _____________

_________________________


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John M. Garcia, with whom Jos Javier Santos Mimoso_______________ __________________________

Totti, Rodrigues-D az & Fuentes were on brief, for defen _________________________________

appellant.

Peter Berkowitz, with whom Roberto Rold n Burgos was________________ ______________________

brief, for plaintiffs-appellees.

_________________________

April 24, 1997

_________________________

SELYA, Circuit Judge. In Johnson v. Jones, 115 S.

SELYA, Circuit Judge. _____________ _______ _____


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2151, 2156-59 (1995), the Supreme Court discussed

circumstances in which a district court's denial of a pu

official's attempt to dispose of a claim for money damages

means of a pretrial motion asserting qualified immunity mig

immediately appealable. Shortly thereafter, in Stella v. Kel ______ __

63 F.3d 71, 73-77 (1st Cir. 1995), we applied Johnson

_______

elaborated upon our understanding of it. The interlocu

appeal in this case requires us to reexamine Stella in lig______

Behrens v. Pelletier, 116 S. Ct. 834, 838-41 (1996). We conc

_______ _________

that our holding in Stella remains fully intact. ______

Before discussing the issue of appealability vel

___

we first set the stage. In 1984, Miguel D az Mart nez (Off


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D az) became a member of the Puerto Rico Police Force.1

inspired approximately eighteen disciplinary complaints, man

which involved the profligate brandishing or use of his offi

firearm without adequate cause. The pi ce de r sistance occu _____ __ __________

on August 17, 1989, when, after assaulting and threatenin

kill his wife, Officer D az captured a police station at gunp

and held several fellow officers hostage. As a result of

incident, he was cashiered and involuntarily committed t

mental institution for three weeks.

Little daunted, Officer D az pressed an administra

appeal. Despite his earlier escapades, he eventually rega

____________________

1Although Officer D az is a defendant in the underl


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suit, he is not a party to the appeal.

2

his position on the force. At the time of his reinstate

(March 25, 1993), and throughout the period material hereto,

appellant, Tom s V zquez Rivera (V zquez), served as an assis

superintendent of the police force and the director of

"Auxiliary Superintendency for Inspections and Discipli

Affairs" (having assumed that post in August 1990). In


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capacity, V zquez was responsible, inter alia, for maintai _____ ____

administrative complaint records, identifying recidivist offi

(those who repeatedly violated disciplinary standards),

ensuring that "problem" officers received special training.

plaintiffs allege that, when Officer D az rejoined the force,

personnel director ordered an investigation preliminary

authorizing him to carry a firearm, and that one of

appellant's subordinates gave D az a clean bill of hea

informing the assigned investigator that D az's file did

contain any mention of past complaints or any other indiciu

his disquieting history. They also allege that V zquez,

derogation of his assigned duties, did not maintain up-to-

files, and, consequently, neither identified D az as a recidi


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officer nor recommended that he undergo remedial training.

result, Officer D az returned to duty without enduring

probationary period, without receiving any remedial train

and, after a delay to permit the completion of the perso

director's investigation, without having any restrictions on

3


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right to carry a firearm.2

On his second day of armed duty, September 8, 1

Officer D az was stationed at the Barbosa Public Housing Proj

a location which the police regarded as a high-tension a

That afternoon, while on guard duty, he accosted the plainti

decedent, Jos Manuel Rosario D az (Jos ), a 19-year-old resi

of the project, and ordered him to retrieve identifica

documents from his apartment. When Jos did not comply

sufficient alacrity, Officer D az shouted obscenities at

Jos 's sister, Mar a Rosario D az (Mar a), attempted

intervene. A scuffle ensued. Officer D az drew his po

revolver, fired a bullet at Mar a (wounding her), and then


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and killed Jos .

In due season, Mar a and other family members bro

suit under 42 U.S.C. 1983 (1994). They alleged that Off

D az and several supervisory police officials, including V z

had violated Mar a's and Jos 's constitutional rights. V z

moved for summary judgment, raising, inter alia, a quali _____ ____

immunity defense. The district court denied his motion. V z

now prosecutes this interlocutory appeal.

Section 1983 provides for a private right of ac

against public officials who, under color of state law, dep

individuals of rights declared by the Constitution or laws of

United States. Nonetheless, a public official accused of c

____________________

2For purposes of his summary judgment motion, descr


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infra, V zquez did not contest these allegations, an_____

therefore must accept them as true.

4

rights violations is shielded from claims for damages u

section 1983 as long as his conduct did not violate rights

were "clearly established" under the Constitution or u

federal law. See Harlow v. Fitzgerald, 457 U.S. 800, 81 ___ ______ __________

(1982); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 19 __________ _______


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For purposes of this defense, a right is clearly establishe

the "contours of the right [are] sufficiently clear tha

reasonable official would understand that what he is

violates that right." Anderson v. Creighton, 483 U.S. 635,________ _________

(1987).

Interlocutory orders (such as orders denying pret

motions to dismiss or for summary judgment) ordinarily are

appealable as of right at the time they are entered. Se_

U.S.C. 1291 (1994). But where, as here, a defendant seeks

shelter of qualified immunity by means of a pretrial motion

the nisi prius court denies the requested relief, a diffe

result sometimes obtains. If the pretrial rejection of

qualified immunity defense is based on a purely legal gro


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such as a finding that the conduct described by the plaint

assuming it occurred, transgressed a clearly established ri

then the denial may be challenged through an interlocu

appeal. See Johnson, 115 S. Ct. at 2155-56. Conversely,___ _______

defendant, entitled to invoke a qualified-immunity defense,

not appeal a district court's summary judgment order insofar

that order determines whether or not the pretrial record

forth a `genuine' issue of fact for trial." Id. at 2159.___

5


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dividing line that separates an immediately appealable order

a nonappealable one in these purlieus is not always eas

visualize. In Stella, we attempted to illuminate it: ______

Thus, on the one hand, a district court's

pretrial rejection of a proffered qualified

immunity defense remains immediately

appealable as a collateral order to the

extent that it turns on a pure issue of law,

notwithstanding the absence of a final

judgment. On the other hand, a district

court's pretrial rejection of a qualified

immunity defense is not immediately

appealable to the extent that it turns on

either an issue of fact or an issue perceived

by the trial court to be an issue of fact.

In such a situation, the movant must await

the entry of final judgment before appealing


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the adverse ruling.

Stella, 63 F.3d at 74 (citations omitted). Under Johnson

______ _______

Stella, then, a defendant who, like V zquez, has unsuccessf ______

sought summary judgment based on qualified immunity is permi

to appeal the resultant denial on an interlocutory basis onl

the extent that the qualified immunity defense turns up

"purely legal" question.

Behrens marks the Supreme Court's latest effort to_______

light upon the timing of qualified immunity appeals. There,

Court noted that "[d]enial of summary judgment often inclu

determination that there are controverted issues of mate

fact" and admonished that Johnson "does not mean that every_______

denial of summary judgment is nonappealable." Behrens, 11_______


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Ct. at 842. Rather, when a court, in denying a motion

summary judgment premised on qualified immunity, determines

certain conduct attributed to a defendant, if proven,

6

suffice to show a violation of clearly established law,

defendant may assert on interlocutory appeal "that all of

conduct which the District Court deemed sufficiently suppo


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for purposes of summary judgment met the Harlow standar______

`objective legal reasonableness.'" Id. (quoting Harlow).___ ______

this extent, Behrens places a gloss on Johnson and reopens_______ _______

appellate avenue that some had thought Johnson foreclo _______

Still, this court anticipated the Behrens gloss in Stella,_______ ______

we wrote that a summary judgment "order that determines whe

certain given facts demonstrate, under clearly established la

violation of some federally protected right" may be reviewe

an intermediate appeal, Johnson notwithstanding, without awai _______

the post-trial entry of final judgment. Stella, 63 F.3d at______

75. Thus, Stella survives the emergence of Behrens fully in ______ _______


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and remains the law of this circuit.

The appeal at hand withers in the hot glare of t

precedents. Under section 1983, a supervisor may be found li

on the basis of his own acts or omissions. See Maldonado- ___ __________

v. Castillo- Rodriguez, 23 F.3d 576, 581-82 (1st Cir. 19 ____________________

Such liability can arise out of participation in a custom

leads to a violation of constitutional rights, see, e.g., i___ ____ _

582 (citing other cases), or by acting with delibe

indifference to the constitutional rights of others, see, e ___

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st___________________ _________

1989) (citing other cases). The plaintiffs' case against V z

hinges on his alleged deliberate indifference; they clai


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7

essence, that if he had minded the store, the shootings woul

have transpired because Officer D az, given his horren

record, would not have been rearmed (or, at least, would not

been rearmed without first having been retrained

rehabilitated), and therefore, that the tragic events

September 8 would not have occurred.


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V zquez's motion for brevis disposition challenged______

theory, legally and factually. In adjudicating it, the dist

court made a binary determination. First, the court ruled t

reasonable official in V zquez's position would have known

the "failure to take . . . remedial actions concerning [a r

officer] could create supervisory liability." This is a

conclusion of law as to which, in the qualified immunity cont

an immediate appeal lies. See Behrens, 116 S. Ct. at___ _______

Stella, 63 F.3d at 77; see also Mitchell v. Forsyth, 472______ ___ ____ ________ _______

511, 528 n.9 (1985) (acknowledging that the question of whe

the conduct attributed by a plaintiff to a particular defen

violates a clearly established right is a "purely le

question).


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Nonetheless, we agree with the lower court that

applicable law was clearly established; it is beyond ser

question that, at the times relevant hereto, a reasonable po

supervisor, charged with the duties that V zquez bore, would

understood that he could be held constitutionally liable

failing to identify and take remedial action concernin

officer with demonstrably dangerous predilections and a chec

8


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history of grave disciplinary problems. See Gutierrez-Rodri ___ _______________

882 F.2d at 562-64; see generally Maldonado-Denis, 23 F.3d at___ _________ _______________

(explaining that a showing of gross negligence on a supervi

official's part "can signify deliberate indifference and ser

a basis for supervisory liability if it is causally connecte

the actions that work the direct constitutional injury"). To

extent that V zquez's appeal seeks to contest this verity, i

baseless.

Having disposed of the purely legal question, we

left with V zquez's asseveration that the district court erre

denying his motion for summary judgment because, regardles

legal theory, the evidence was insufficient to estab


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deliberate indifference on his part, and, thus, he was enti

(at the least) to qualified immunity. But Judge Laff

rejected this argument on the basis that the record conta

controverted facts and that, if a factfinder were to res

those disputes favorably to the plaintiffs, he could then

that V zquez's supervision of the disciplinary affairs bureau

so pathetic that his conduct constituted deliberate indiffer

to the plaintiffs' rights.3 Since V zquez does not argue

____________________

3This rejection was factbound. In denying V zquez's mo

for brevis disposition, Judge Laffitte, citing various exhib

______

commented that "the record is replete with evidence that [Off

D az's] disciplinary file was poorly maintained." The judge

pointed to evidence indicating "that many of the po

department's disciplinary files on its officers were incomple

and noted specifically evidence to the effect "that V z

failed to maintain [Officer D az's] disciplinary records, fa

to identify him as an officer [who had engaged in] repeti


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conduct, and failed to refer him for training." Judge Laff

further observed that, had the file been properly maintai

9

the facts asserted by the plaintiffs, even if altogether t

fail to show deliberate indifference he argues instead what

counsel termed at oral argument "the absence of facts," i

that the facts asserted by the plaintiffs are untrue, unpro

warrant a different spin, tell only a small part of the st


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and are presented out of context the district cou

determination is not reviewable on an interlocutory appeal.

Behrens, 116 S. Ct. at 842; Johnson, 115 S. Ct. at 2156 _______ _______

Berdec a-P rez v. Zayas-Green, ___ F.3d ___, ___ (1st Cir. 1 ______________ ___________

[No. 96-1490, slip op. at 3]; Santiago-Mateo v. Cordero, _________________ _______

___, __ (1st Cir. 1997) [No. 96-1688, slip op. at 3-5]; Ste __

63 F.3d at 75-77.

We need go no further. To the extent that V zqu

challenge to the order denying summary judgment is ripe

review, it is impuissant.

Affirmed. Costs to appellees. Affirmed. Costs to appellees.

________ __________________


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____________________

Officer D az likely would have been evaluated as unfit to re

to regular duty. In the court's view, this (and other) evide

taken in the light most complimentary to the plaintiffs,

"sufficient to create a genuine issue of material fact a

whether [V zquez] was deliberately indifferent and whether

failure to maintain an accurate file on [Officer D az] ca

[the plaintiffs'] injuries."

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Rosario-Diaz v. Diaz-Martinez, 1st Cir. (1997)

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